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Melton v. Cross

Supreme Court of Kentucky

August 29, 2019

STEVE MELTON; DEBORAH MELTON; AND JUNIOR MELTON APPELLANTS
v.
DONNIE S. CROSS; BETTY CAROL CROSS; KIMBERLY CROSS FERRILL; JASON FERRILL; AND DONNA BETH CROSS APPELLEES

          ON REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-001819 CLINTON CIRCUIT COURT NO. 14-CI-00121

          COUNSEL FOR APPELLANTS: Angela M. Capps Harris & Harris, PSC.

          COUNSEL FOR APPELLEES: Gary Alan Little

          OPINION

          MINTON CHIEF JUSTICE.

         We accepted discretionary review of this case, which involves a jury trial to resolve a dispute between two adjoining landowners over whether one owner's use of a road across the land of the other had ripened into a prescriptive easement. Affirming the Court of Appeals' opinion reversing the jury verdict and resulting judgment, we hold that when confronted with conflicting evidence on the issue of permissive versus prescriptive use of this road, the trial court erred by failing to instruct the jury in a way that allowed the jury to address this factual dispute to resolve it. We also take this opportunity, as a matter of first impression, to clarify Kentucky Rule of Evidence ("KRE") 801A(c)(2), the predecessors-in-interest admission-by-privity exception to the hearsay rule.

         I. BACKGROUND.

         The Meltons and the Crosses own adjoining farms. The Crosses' property is allegedly landlocked-surrounded by the lands of others and lacking a documented route of ingress and egress from either of the two nearby public roadways. Before 2014, the Crosses accessed one of the public roads by using a private road across the Meltons' land. But in that year, a dispute arose between them, and the Meltons blocked the Crosses' use of the road by placing a locked gate across it.

         The Crosses sued in circuit court claiming a vested right to use the road as an easement acquired by prescription.[1] They sought to establish that they and their predecessor-in-interest, Walter Cross, had used this same road continuously since 1953. Donnie Cross, Walter's son and the current owner of the Crosses' land, acquired the property in 1998. Donnie and his children testified that they traveled the road during their childhoods and that the previous owners of the Meltons' property knew of their use and did not stop them from doing so. The Crosses asserted that from the 1950s through 2013 they had undisturbed access to their farm via the road, they never asked permission to use it, and no one gave them permission to use it.

         The Meltons, who acquired their property in 2011, asserted that their predecessors-in-interest gave the Crosses permission to use the road.[2] A witness for the Meltons, Neil Thacker, testified that his grandfather, Jesse Keen, the undisputed owner of the Meltons' property between 1946 and 1998, told him that he (Keen) gave the Crosses permission to use the road. Thacker also testified that Keen told him that he (Thacker) could stop the Crosses from using the road at any time.[3] This proffered testimony by Thacker, repeating an out-of-court statement by Keen, is one of the issues before us.

         At the close of all the evidence, the Crosses requested from the trial court a jury instruction based on this Court's holding in Ward v. Stewart, a case in which we reaffirmed a longstanding Kentucky rule that continuous, uninterrupted use of a passway without interference by the landowner over whose land it passes for a period of more than 15 years gives rise to a presumption that the use was under claim of right. The effect of this presumption is to shift the burden to the landowner to offer evidence, either direct or circumstantial, that the claimant's use was permissive.[4] The trial court here declined to give an instruction in conformance with Ward, settling instead for a general instruction reciting the elements necessary to prove the existence of a prescriptive easement. The propriety of the trial court's refusal to give the Ward instruction is the second issue before us.

         The jury found in favor of the Meltons, which meant that the Crosses had no right to use the disputed road. And the trial court entered judgment in conformity with the jury's verdict. But the Court of Appeals reversed this judgment on appeal, finding that the trial court erred by failing to instruct the jury in conformance with the rule in Ward. And, realizing that the crucial issue of the admissibility of Keen's out-of-court statement would arise again on remand, the Court of Appeals also held that Thacker's testimony repeating Keen's statement about permissive use was inadmissible hearsay.

         II. ANALYSIS.

         A. The Court of Appeals correctly held that the trial court abused its discretion in failing to give a jury instruction based on Ward v. Stewart.

         We address first whether the trial court committed reversible error in failing to instruct the jury based on the rule in Ward. We affirm the Court of Appeals' holding that the trial court committed a reversible error on this issue.

         "The trial court must instruct the jury upon every theory reasonably supported by the evidence."[5] "Each party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it."[6] "[I]n deciding whether to give a requested instruction the trial court must decide 'whether the evidence would permit a reasonable juror to make the finding the instruction authorizes.'"[7] "When the question is whether a trial court erred by . . . not giving an instruction that was required by the evidence[, ] the appropriate standard for appellate review is whether the trial court abused its discretion."[8]"[A] trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles."[9]

         The law of prescriptive easements is well rooted in Kentucky. The general rule is that a plaintiff must prove the "actual, hostile, open and notorious, exclusive, and continuous possession of the [defendant's] property for the statutory period of fifteen years" to acquire a prescriptive easement over the defendant's property.[10]

         But a series of presumption and burden-shifting rules also exist in our precedent. These rules were summarized in Lambert v. Huntsman:

The first proposition about which there is no conflict is that the uninterrupted, continuous, and unexplained use of the passway by the claimant thereto for a period of as much as or more than 15 years will raise a presumption that the use was under a claim of right which became absolute at the expiration of the 15 years, when the claimant would become vested with the title to the passway, which the owner of the servient estate must acknowledge and respect.
A second equally well-settled proposition, that the presumption arising from such use is not a conclusive one, but is only a rebuttable one, under and by virtue of which the owner of the servient estate may show, in a controversy involving the right to the easement, that the use of it by the claimant was in fact permissive only, in which case the use would be but the exercise of a license, which the owner of the servient estate might revoke at pleasure.
Another proposition applicable to prescriptive acquisitions of passways is that where the use at its inception is shown to have been permissive no length of time may ripen it into a right, unless in the meantime there has been a distinct and positive assertion of a claim of right to the easement, and which assertion is brought home to the owner of the servient estate.[11]

         In other words, the presumption and burden-shifting rules of proving a prescriptive easement work like this: First, the plaintiff has the burden to offer proof of "uninterrupted, continuous, and unexplained use of the passway by the claimant... for a period of as much as or more than 15 years."[12] Doing so raises a presumption of a valid prescriptive easement on the part of the plaintiff. But this presumption is rebuttable. The defendant then has the burden to offer proof "that the use of [the passway] by the [plaintiff] was in fact permissive only."[13] If the defendant is able to offer evidence that "the use [of the passway] at its inception [was] permissive[, ]" then the burden shifts back to the plaintiff to offer proof that "there has been a distinct and positive assertion of a claim of right to the easement, and which assertion is brought home to the owner of the servient estate."[14]

         The trial court here refused the Crosses' request to give the burden-shifting Ward instruction-a jury instruction based on the first and second principles discussed above. The Court of Appeals correctly held such refusal to be an abuse of discretion by the trial court because the trial court unreasonably failed to recognize that the evidence presented by the Crosses "would permit a reasonable juror to make the finding the instruction authorizes."[15]

         A total of eight witnesses testified on behalf of the Crosses. Three of those witnesses, Kim Cross Ferrill, Donnie Cross, and Richard Cross provided direct testimony supporting the Crosses' "continuous, uninterrupted and without interference from the [Meltons]" use of the road over the Melton land for a period greater than the requisite 15-year statutory period. Ferrill testified that she had been using the road one to two times a week consistently for 28 years without ever getting permission from the road's owners or seeing a gate or other obstruction preventing use of it. Donnie testified to the same but added that his use had been three times weekly consistently for nearly 60 years. Richard testified to the same, adding that his use was for approximately 40 years.

         A surveyor testified that he used the road for around 15 years without ever seeing a gate, fence, or any kind of obstruction preventing its use. A retired school teacher testified that she traveled on the road during her childhood without any obstruction preventing her from doing so. A neighbor testified to the same and that the gate erected by the Meltons two to three years before the lawsuit was the only barrier erected to impede use of the road.

         A hunter testified that he and others used the road for close to 30 years continuously without any impediment. A woodcutter testified to the same.

         The Meltons then presented evidence purporting to rebut the Crosses' prescriptive-easement claim. Some evidence suggested that the Meltons' predecessors-in-interest gave permission to the Crosses and to other neighboring landowners to use the road. Other evidence suggested that gates were in place on it long before the Crosses alleged the first gate was put in place. Further evidence from the Meltons suggested that the ...


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